On May 8, 2017, the Northwest Immigrant Rights Project (NWIRP) filed this lawsuit against the Department of Justice (DOJ) and the Executive Office for Immigration Review (EOIR) in the U.S. District Court for the Western District of Washington. NWIRP challenged the “cease and desist” letter it ... read more >

On May 8, 2017, the Northwest Immigrant Rights Project (NWIRP) filed this lawsuit against the Department of Justice (DOJ) and the Executive Office for Immigration Review (EOIR) in the U.S. District Court for the Western District of Washington. NWIRP challenged the “cease and desist” letter it had received from DOJ five weeks prior. The letter instructed NWIRP to stop assisting unrepresented immigrants in deportation proceedings. Specifically, EOIR chose to interpret its rule governing attorney misconduct to require that NWIRP either commit to full legal representation of every immigrant in removal proceedings it presently assists, or refrain from providing them any form of legal assistance (including brief consultations). NWIRP stated that this would deprive thousands of immigrants of the chance to consult with a lawyer. In addition to claiming that DOJ’s order violated the First and Tenth Amendments and seeking declarative and injunctive relief, NWIRP also filed a motion for a temporary restraining order (TRO). NWIRP alleged that the DOJ order infringed on the free speech of NWIRP lawyers by prohibiting their ability to screen, consult with, advise, or otherwise assist immigrants in need of legal services without taking each one on as a client. The case was assigned to Judge Richard A. Jones.

After hearing oral arguments, Judge Jones granted NWIRP’s motion for a TRO on May 17, 2017, and temporarily restrained DOJ from enforcing—or threatening to enforce—sanctions against NWIRP lawyers who consult with or offer limited services to pro se immigrants in deportation proceedings. Judge Jones further granted the TRO on a nationwide basis, precluding DOJ from issuing cease-and-desist letters to other non-profit organizations providing legal services to immigrants. The TRO was set to remain in effect until the Court ruled on NWIRP’s planned motion for a preliminary injunction.

NWIRP moved for a preliminary injunction on June 8, arguing that the TRO should be extended until there was a full trial on the merits. A hearing on the motion was held on July 24, and Judge Jones granted the preliminary injunction on July 27. The order stated that NWIRP was likely to succeed on the merits of its First Amendment claim because the government's regulation failed to meet strict and intermediate scrutiny. The Court wrote that "the Government may not regulate in a way that chills the ability of non-profit organizations to obtain meaningful access to the courts, especially when that access is sought to advance civil-rights objectives. In this context, the Government may regulate 'only with narrow specificity'... The Government has not done so in this instance." Further, the Court stated that "the Government has failed to advance any substantial regulatory interest, in the form of substantive evils flowing from NWIRP’s activities, which can justify the broad prohibitions which it has imposed."

DOJ filed a motion to dismiss on Aug. 4, arguing that the six-year statute of limitations for civil actions against the United States barred NWIRP's claims. DOJ further argued that NWIRP's First Amendment claim failed because "the immigration courts...are a nonpublic forum where the government is permitted to regulate speech in a reasonable and viewpoint-neutral manner." Finally, DOJ argued that the NWIRP's Tenth Amendment claim failed because EOIR rules prevail if they come in conflict with state rules "so that the agency can consistently regulate practice across the nation." DOJ also filed a motion to stay discovery pending the Court's review of its motion to dismiss, but the Court denied a stay on Sept. 18.

On Dec. 19, the Court granted and denied in part DOJ's motion to dismiss. The Court denied DOJ's statute of limitations claim, holding that the statute of limitations does not apply to a facial challenge of a law under the First Amendment nor was NWIRP outside of the statute of limitations on its Tenth Amendment claim. The court denied DOJ's request to dismiss NWIRP's First Amendment claim, finding that NWIRP successfully alleged its as-applied and facial challenges. The court dismissed NWIRP's Tenth Amendment claim. 2017 WL 6492703.

On Jan. 16, 2018, Judge Jones scheduled a bench trial starting Nov. 13, 2018. However, on Aug. 14, 2018, the Court granted the parties' stipulated motion to appoint a magistrate judge for mediation and to stay proceedings. The Court continued to stay proceedings as the parties negotiated, and finally, on March 28, 2019, the parties reached a tentative settlement agreement. The parties filed their settlement agreement with the Court on April 17.

As part of the settlement, the defendants will undertake a rulemaking process to amend the regulation at issue in this case. The parties also agreed to jointly seek a stay from the Court, which will then retain jurisdiction of this case during the rulemaking process. NWIRP agreed to dismiss their lawsuit if the defendants issue a final rule that is consistent with their requests to permit attorneys to consult with or offer limited services to pro se immigrants. The defendants also agreed to pay $380,000 in attorneys' fees and costs to the plaintiffs.

On April 18, the Court extended the stay in the case pending rulemaking until Jan. 17, 2020, at which time the parties will provide a status report to determine whether an additional stay is necessary.

On January 16, 2020, the Court extended the stay in the case until March 2, 2020 to facilitate the conclusion of the DOJ rulemaking process. The parties shall file a status report on the rulemaking process no later than March 2, 2020.

Implementation of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States
The Washington PostDate: May 22, 2017 By: Jefferson Sessions (U.S. Department of Justice)[ Detail ][ External Link ]

Executive Order 13768: Enhancing Public Safety in the Interior of the United States
Federal RegisterDate: Jan. 25, 2017 By: President Donald Trump (Office of the President)[ Detail ][ PDF ][ External Link ]